On September 28, 2017, the NSW Supreme Court awarded a final injunction with global reach, directed towards the California-based Twitter Inc and its Irish counterpart, Twitter International Company.
When David Rolph brought the case to my attention, I was midway through writing an article dealing with the same set of facts.
On September 8, 2017, in X v Y & Z, the court continued and expanded an interlocutory injunction against anonymised defendants.
It turns out that Y + Z = Twitter.
X v Twitter Inc deals with an increasingly familiar problem: how can private individuals have content removed from the global internet through procedures of domestic courts?
Background
The plaintiff is an anonymous partnership, plagued by an anonymous troll on a vendetta.
Unfortunately for the plaintiff, this person has access to some of the plaintiff’s financial records.
In May, the troll began tweeting under a handle that adopted the name of the plaintiff’s CEO. The tweets disclosed confidential financial information.
The plaintiff was swift in bringing a complaint; Twitter removed the content for violation of its terms of service.
The plaintiff also requested that Twitter disclose information relating to the identity of this person, flagging a potential action against that person for breach of confidence.
Twitter refused, appealing to its privacy policy.
The dodgy tweets continued. When the troll impersonated another officer of the plaintiff, Twitter removed the account. But when the troll took on a nom de plume that did not involve impersonation, Twitter refused to comply. The covert campaign of leaks continued into September.
In desperation, on September 6, the plaintiff commenced these proceedings.
That day, Stevenson J granted an interlocutory injunction restraining the publication of the offending material, causing the material to be removed from Twitter, and suspending the relevant Twitter accounts.
On September 8, at an ex parte hearing, Pembroke J extended those orders.
The final injunction went even further. It requires the ongoing removal of any accounts held by the anonymous troll(s).
The court also made suppression orders, and a Norwich order compelling Twitter to reveal identifying details, including IP addresses, of the anonymous leaker.
The exorbitant jurisdiction
The defendants refused to appear in the proceedings.
On September 8, they sent an email objecting to the court’s jurisdiction and the substance of the orders made.
There was an issue whether the court possessed jurisdiction in personam: the authority to bind the defendants personally.
At common law, in the absence of the defendants’ submission, jurisdiction is territorial.
Pembroke J may have considered that the defendants were not present.
If so, respectfully, that may have been a mistake. At common law, a foreign corporation may be present by carrying on business in the forum.
Recently, in the Google v Equustek litigation, the Court of Appeal for British Columbia held that Google had carried on business in the forum by collecting data, providing search services, and mining AdWords revenue.
The court had jurisdiction as a natural consequence of the global scale of Google’s business.
The finding was not disturbed by the Supreme Court of Canada (noted by Hugh Tomlinson QC).
In any event, if the defendants’ email spoke to the merits of the injunction, that may have been a submission.
Jurisdiction in personam may also be founded on long-arm provisions authorising service outside of the jurisdiction.
For NSW, those provisions are contained in the recently amended UCPR Part 11 and Schedule 6.
Service is permitted where the claim has a prescribed connection to the forum.
Pembroke J (pic) accepted that the court possessed in personam jurisdiction with appeal to the heads of Schedule 6, holding that:
“Among other things, the injunction sought to compel or restrain the performance of certain conduct by the defendants everywhere in the world.
That necessarily includes Australia.”
If that proposition is accepted around the world, then every court would have jurisdiction to remove anything from the global internet.
The Equustek case, and the expansion of the right to be forgotten, are recent examples of a trend in that direction.
Not so long ago, this would have been lamented as involving exorbitant jurisdiction.
The more modern view is that a court’s long-arm jurisdiction is not objectionable per se, but the exorbitant exercise of jurisdiction may be objectionable.
The exercise of discretion
It was uncontroversial that the defendants could owe an obligation of confidence to the plaintiff: it was held that the equitable principle extends to social networking services which facilitate the posting of confidential information.
Further, it was uncontroversial that, provided that a court of equity has jurisdiction in personam, conduct outside of the territorial jurisdiction may be enjoined.
The issue was whether it was proper for the court to exercise its discretion to make the award.
In its email of protest, Twitter argued that the injunction sought exceeded the proper limits of the use of the court’s powers.
It appealed to Macquarie Bank v Berg, where an injunction to restrain online defamation was refused, partly because defamation law is not uniform around the world.
Berg was distinguished; however, the court did not consider comparative laws of confidence.
In contrast to the Supreme Court in Google v Equustek, discussion of comity was conspicuously absent.
Quite appropriately, the court considered the utility of the order.
Extraterritorial enforcement of the injunction could not be guaranteed, but Twitter’s commercial interests suggested voluntary compliance.
It is likely that the global injunction will be implemented, albeit begrudgingly, for the sake of Twitter’s standing in the Australian market.
Rolph predicts that this “soft effect of hard law is something I think we’re going to see more of in the future”.
Conclusion
When you attend a bar late at night, you may pass a large bouncer. That bouncer could crush your skull. He does possess that power. But just because he can do that does not mean that he should do that.
Just because the court has authority to do X does not justify X. In my view, it may be questioned whether X was justified in X v Twitter.
I’m not convinced that domestic courts should flex their muscles over the entire internet.
Australian courts might protect corporate confidences, but then Chinese courts might protect CPC accounts of the Tiananmen Square Massacre.
It is a slippery slope argument, but we ought to be cognisant of the role of reciprocity in private international law.
*Michael Douglas lectures in private international law at Sydney Law School. He is currently researching cross-border media law issues.
This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.
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